Court of Appeal hands down judgment in controversial Denton appeal in which James Counsell KC and Olinga Tahzib appeared

The Court of Appeal has handed down judgment in an important appeal in the case of FXF v (1) English Karate Federation Ltd, (2) David Jonathan Donovan, in which James Counsell KC and Olinga Tahzib act for the Claimant

James and Olinga act for a Claimant (referred to as ‘FXF’ to protect her anonymity) – a highly successful karate athlete – who brings a claim for personal injury arising out of sexual abuse by her karate coach between 2008 and 2014. The Claimant claims that the two Defendants are vicariously liable for the abuse she suffered and directly liable for failing to discharge their own duty of care towards her.

On 13 July 2023, James and Olinga appeared for the Claimant in her appeal before the Court of Appeal which was heard by Sir Geoffrey Vos, Master of the Rolls, Lady Justice Nicola Davies and Lord Justice Birss.

Background to the appeal

The hearing before the Court of Appeal arose as a result of an important procedural issue:

The Second Defendant failed to file a defence on time, which enabled the Claimant to obtain default judgment. The Second Defendant applied to set aside that default judgment. In December 2021, the matter came before Master Thornett who, having heard submissions in the course of a contested hearing, agreed to set the default judgment aside.

It was the Claimant’s case that the Master failed to apply the correct test to the exercise of his discretion in that he failed to recognise that the application to set aside default judgment under CPR 13.3 amounted to a relief from sanctions application under CPR 3.9, with the result that the Master was obliged to apply the test in Denton v TH White [2014] 1 WLR 3296.

In view of some conflicting authorities on the issue at High Court level, the Claimant obtained permission to appeal directly to the Court of Appeal.

The parties’ positions on appeal

The principal dispute between the parties at the appeal hearing was as to the applicability of the Denton test to an application under CPR 13.3.

It was the Second Defendant’s case that applications under CPR 13.3 do not engage the relief from sanctions regime under CPR 3.9 and therefore do not require a strict application of the Denton test. The Second Defendant relied on a number of High Court authorities including the very recent decision in PXC v AB College [2022] EWHC 3571 (KB) and the case of Cunico Resources NV v Daskalakis [2018] EWHC 3382 (Comm).

The Claimant argued that there was an established body of law, including at Court of Appeal level, which made clear that applications under CPR 13.3 engage the Denton test.

The Court of Appeal’s judgment

In the course of a 73-paragraph judgment by Sir Geoffrey Vos, Master of the Rolls, with which Nicola Davies and Birss LJJ agreed, the Court of Appeal confirmed that “the Denton tests apply in their full rigour to applications to set aside default judgments”. In so doing, the Court of Appeal overruled the decision of the High Court in PXC and clarified that the dicta in Cunico is no longer to be relied on.

The Court of Appeal’s decision thus finally puts this issue to bed and is likely to be relied upon by parties seeking to resist applications to set aside default judgment. The Court issued a number of stark warnings to litigants who fail to comply with Court deadlines: “Parties to civil proceedings and their solicitors need fully to understand that flouting rules and court orders will simply not be tolerated”.

On the facts of FXF itself, the Court of Appeal upheld the decision of Master Thornett, identifying that the Master had, in substance, applied the Denton test, “albeit not as formally as might have been desirable”.

A copy of the judgment is available here.

The hearing details for 13 July can be viewed here.

Find out more

James Counsell KC is widely recognised in the fields of Clinical and Professional Negligence, Personal Injury, regulatory and disciplinary hearings and Financial Services claims, both in the UK and abroad, acting both for claimants and for defendants. He also specialises in acting for survivors of non-recent sexual abuse, having recently acted as lead counsel (leading Benjamin Bradley) in two claims against the Jehovah’s Witness organisation, the second of which has just been heard in the Supreme Court and numerous claimants in cases against football clubs and other sporting bodies, religious and educational organisations and the Scout Association.

Olinga Tahzib is a civil practitioner specialising in personal injury, clinical negligence and employment disputes. He is ranked as a rising star by Legal 500 across all three areas. In his personal injury and clinical negligence work, Olinga increasingly acts for individuals who have suffered life-changing injuries. His current caseload includes acting unled in what is likely to be a 7-figure claim for a claimant who has been rendered paraplegic following a wound infection which was improperly treated.

To find out more about James or Olinga, contact Paul Barton (0207 427 4907) or Chris Rowe (0207 427 4911) for a confidential discussion.

News 26 Jul, 2023